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CASE NO.:

Appeal (crl.) 882 of 2001

PETITIONER:

S. NAGALINGAM

RESPONDENT:

SIVAGAMI

DATE OF JUDGMENT: 31/08/2001

BENCH:

D.P. MOHAPATRA & K.G. BALAKRISHNAN

JUDGMENT:

JUDGMENT

2001 Supp(2) SCR 454

The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, J. Leave granted.

This appeal is directed against the judgment of the learned Single Judge of

the High Court of Madras in Criminal Appeal No. 486 of 1999 reversing the

order of acquittal passed by the Metropolitan Magistrate, Madras. The

learned Single Judge found the appellant guilty of the offence under

Section 494 1PC.

The appellant, S. Nagalingam married respondent-complainant Sivagami on

6.9.1970. Three children were born from that wedlock. The respondent

alleged that the appellant started ill-treating her and on many occasions

she was physically tortured. As a result of ill-treatment and severe

torture inflicted by the appellant as well as his mother, she left her

marital home and started staying with her parents. While so, the respondent

came to know that the appellant had entered into a marriage with another

woman on 18.6.1984, by name Kasturi, and that the marriage was performed in

a Marriage Hall at Thiruthani. The respondent then filed a criminal

complaint before the Metropolitan Magistrate against the appellant and six

others. All the accused were acquitted by the trial court. Aggrieved

thereby, the respondent filed criminal appeal No. 67 of 1992 before the

High Court of Madras. The learned Single Judge, by his judgment dated

1.11.1996 upheld the acquittal of accused 2-7, but as regards the acquittal

of the appellant, the matter was remitted to the trial court permitting the

complainant to adduce evidence regarding the manner in which the marriage

was solemnized. Upon remand the Priest [PW-3], who is alleged to have

performed the marriage of the appellant with the second accused, Kasturi,

on 18.6.1984, was further examined and the appellant was allowed further

cross-examination. The learned Metropolitan Magistrate by his judgment

dated 4.3.1999 acquitted the accused. Aggrieved by the state judgment, the

respondent preferred a criminal appeal before the High Court of Madras. By

the impugned judgment, the learned Single Judge held that the appellant had

committed the offence punishable under Section 494 IPC. This is challenged

before us.

We heard Mr. R. Sundravardan, learned senior counsel for the appellant. The

respondent Sivagami appeared in person and she filed some documents in

court. Though she was offered the assistance of a counsel, she declined to

avail herself of that opportunity.

The short question that arises for our consideration is whether the second

marriage entered into by appellant with the second accused. Kasturi, on

18.6.1984 was a valid marriage under Hindu Law so as to constitute an

offence under Section 494 IPC.

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The essential ingredients of the offence under Section 494 IPC are (I) the

accused must have contracted the first marriage; (ii) whilst the first

marriage was subsisting, the accused must have contracted a second

marriage; and (iii) both the marriages must be valid in the sense that

necessary ceremonies governing the parties must have been performed.

Admittedly, the marriage of the appellant with the respondent, entered into

by them on 6.9.1970, was subsisting at the time of the alleged second

marriage. The Metropolitan Magistrate held that an important ceremony,

namely, "Saptapadi" had not been performed and therefore, the second

marriage was not a valid marriage and no offence was committed by the

appellant. The learned Single Judge reversing this decision in appeal held

that the parties are governed by Section 7-A of the Hindu Marriage Act as

the parties are Hindus residing within the State of Tamil Nadu. It was held

that there was a valid second marriage and the appellant was guilty of the

offence of bigamy. In the co